Roulstone v R

Court of Criminal Appeal (NSW)|2024-11-29|Before: Davies J, Adams J, Yehia J, As Spigelman CJ

JUDGMENT

DAVIES J: I agree with N Adams J for the reasons her Honour gives. I wish, however, to emphasise what her Honour said at [135] to [139] concerning the Crown's decision to place 12 of the 16 charges on Form 1 documents.
As N Adams J observes, it is difficult to understand why the decision was made by the Crown to treat the 16 charges by moving the majority of them onto Form 1 documents. Counsel for the Crown at the hearing of the appeal could offer no explanation for it and acknowledged that it not only breached the Prosecution Guidelines, it also breached even the old rule or practice in relation to frauds, of pleading the, first, worst and last at least.

Agreed Facts

The applicant was sentenced on the basis of a lengthy statement of agreed facts. As will be discussed further below, the agreed facts summarised all of the 16 counts originally on the indictment which covered the 15 month period of the offending. The sentencing judge set out the following table early in his sentencing reasons which helpfully differentiates between the indictment offences and those placed on the Forms 1: Count Indictment Form 1 Date Range Financial advantage Number of transactions 1 Indictment - 3 July 2018 to 26 July 2018 $16,000 5 2 - Form 1 (attaching to count 1) 1 August 2018 to 29 August 2018 $188,000 7 3 - Form 1 (attaching to count 1) 3 September 2018 to $207,000 3 21 September 2018 4 - Form 1 (attaching to count 1) 18 October 2018 to 31 October 2018 $218,000 5 TOTAL 3 months 28 days $629,000 5 Indictment - 9 November 2018 to 29 November 2018 $400,000 6 6 - Form 1 (attaching to count 5) 5 December 2018 to 19 December 2018 $300,000 5 7 - Form 1 (attaching to count 5) 2 January 2019 to 29 January 2019 $400,000 6 8 - Form 1 (attaching to count 5) 1 February 2019 to 18 February 2019 $450,000 5 TOTAL 3 months 9 days $1,550,000 9 Indictment - 4 March 2019 to 29 March 2019 $750,000 6 10 - Form 1 (attaching to count 9) 9 April 2019 to $535,000 8 30 April 2019 11 - Form 1 (attaching to count 9) 1 May 2019 to 21 May 2019 $260,000 4 12 - Form 1 (attaching to count 9) 3 June 2019 to 24 June 2019 $375,000 5 Total 3 months 20 days $1,920,000 13 Indictment - 19 July 2019 to 26 July 2019 $175,000 2 14 - Form 1 (attaching to count 13) 6 August 2019 to 20 August 2019 $270,000 4 15 - Form 1 (attaching to count 13) 12 September 2019 $85,000 1 16 - Form 1 (attaching to count 13) 2 October 2019 to 29 October 2019 $179,000 6 Total 3 months 10 days $709,000

I have taken the following summary of the facts directly from his Honour's remarks on sentence verbatim (save for formatting and correction of typographical errors).
The offender was born 11 May 1978 and was aged between 40 and 41 at the time of the offences. The victim of all the offending was Robert James Keldoulis. The offender and Mr Keldoulis met one another in 2018 through swimming schools in Bondi. At the time, the offender was working as a swimming instructor and Mr Keldoulis' two sons were students at the same swimming school. Over time, their association developed into one of friendship, whereby they would meet from time to time outside of the swimming school, including to meet one another socially for coffee. As their friendship developed, they discussed business opportunities, including the business of running a swimming school and the offender's business aspirations.
At some time in early June 2018, the offender met with Mr Keldoulis for coffee. During that meeting, the offender said that he had a business opportunity to buy a small swimming school associated with a pool in Bronte. During a subsequent discussion, this further business proposal was further discussed during which the offender said words to the following effect. "Things are moving along, I have a great opportunity to buy a small swim school in Bronte. The owner has to go to Perth at short notice and is happy to hand the pool over with no goodwill payment, just take over the payment of the monthly pool lease. I will have to spend a bit on fixing the pool up and installing lane ropes and other equipment, it's a bit rundown. Would you be able to help me buy into it?"
In response, Mr Keldoulis said that he was not interested in swim schools as a business, but he first wanted to see some figures.
At a further meeting at a coffee shop within a week, the offender represented to Mr Keldoulis: "I will need some money to fund the wages and rent until the swim school fees start to hit my account." When asked for details of how much money he needed, the offender said: "Small amounts under $20,000 total." Mr Keldoulis agreed to help fund the start-up costs of the business but did so on the basis the offender would repay him once the pool began to generate profits.
The offender told Mr Keldoulis a few days later that he then required money to pay "holiday program salaries" for staff, to fix up the pool entrance and to purchase equipment for the swim school.
For each of the transfers of the money made by Mr Keldoulis to the offender, the payments were transferred from a bank account associated with Mr Keldoulis or one of his businesses and paid into a Commonwealth Bank of Australia account in the offender's name (the "Offender's Account") or into another account associated with the offender.
In July 2018, Mr Keldoulis met with the offender on a number of occasions, and they further discussed the setting up of a swimming school at Bronte. During those meetings, the offender asked again for Mr Keldoulis to provide him with money in order to pay for various expenses involved in the business.

Facts relevant to count 1

Relevant to count 1, during the period 3 July 2018 and 26 July 2018, Mr Keldoulis, acting on the offender's requests, transferred a total of $16,000 to the Offender's Account. After these transfers were received into the Offender's Account, the offender then transferred various amounts out of his account to other accounts associated with him and to an account associated with a Ms Keely Pollock with whom the offender was in a personal relationship at the time. It is an agreed fact that those transfers were mislabelled with false transaction descriptions such as, "Bill", "Shop", "Rent" and "Savings" in order to disguise the movement of money into these other accounts. The offender's bank records also show that during July 2018 he had incurred gambling debts.
In relation to the Form 1 offences attaching to count 1, the offender engaged in further conduct, during August 2018, September 2018 and October 2018 to dishonestly obtain financial advantage from Mr Keldoulis by deception. The agreed facts relating the further conduct to be taken into account on the Forms 1 and attaching to count 1 are as follows.

Facts relevant to Form 1 (attaching to count 1): Count 2

Throughout August 2018, the offender met further with Mr Keldoulis and at around this time he told Mr Keldoulis that his swimming school at Bronte was successful. Mr Keldoulis suggested he could send one of his sons there for swimming lessons. Although arrangements were tentatively made for that to occur, the offender later provided an excuse that he was unable to attend the arranged time.
In August 2018, at further meetings between the two, the offender made the following representations to Mr Keldoulis on the following topics: the success of the swimming school at Bronte pool; and an opportunity to purchase Speedo Swimming school, which he said could make half a million dollars a year, describing the need for upfront investment to pay $50,000 for a bond and $130,000 for a heater.
At the time of these meetings, the offender was an employee at the Speedo Swim School where he had worked since 2016. At no time did the owner of that business ever discuss any sale of the business to the offender or the prospect of the offender taking over the lease of that business.
Between 1 August 2018 and 29 August 2018, Mr Keldoulis made seven transfers, totalling $188,000 into the Offender's Account and into other accounts associated with the offender. Transaction descriptions for these transfers, included "Loan to Dene", "Fastswim", and "Dene Fastswim". Upon receipt of those funds, the offender transferred large sums of money out of those accounts to other accounts associated with him and Ms Pollock.
Those transfers were labelled with false transaction descriptions such as "Bill", "Shop", "Rent" and "Car".'
During the month of August 2018, the offender continued to engage in online gambling using money he had obtained from Mr Keldoulis. Such money included transfers of over $72,500 to Sportsbet and over $106,000 to the TAB.

Facts relevant to Form 1 (attaching to count 1): Count 3

During September 2018, the offender met further with Mr Keldoulis and spoke to him further about the Speedo Swim School. Mr Keldoulis requested a meeting with the owner of the pool and the offender responded that he would organise the meeting.
Representations made by the offender to Mr Keldoulis during September 2018 included the following: he had a great opportunity to immediately take over a pool in Matraville for a goodwill payment of $200,000 being a year's profit with a nine-year lease based on nine years up front; the pool needed new lane ropes and kick boards and possibly updating other items and there was a need to employ staff; they could expect to make $200,000 a year; and payments needed to be made of $350,000 to the owner and $200,000 to the operator spread out in a series of transfers.
In the weeks following those representations, the offender called Mr Keldoulis and requested sums of money to be paid to effect the business takeover.
Between 1 September 2018 and 30 September 2018, Mr Keldoulis made three transfers totalling $207,000 into the Offender's Account and into other accounts associated with the offender. One of those transfers had the transaction description "Loan to Dene". Upon receipt of those funds, the offender transferred large sums of money out of those accounts to other accounts associated with him and Ms Pollock. Those transfers were labelled with false transaction description such as "Bill", "Shop", "Love u" and "Allowance". Funds were transferred from Ms Pollock's accounts in similar amounts with similar false descriptions.
During September, the offender continued to use money he had obtained from Mr Keldoulis to fund his own lifestyle expenses, including going on an overseas trip to Bali and gambling through the TAB and Sportsbet, all of which were funded by Mr Keldoulis' money. Transfers totalling over $13,000 were made to TAB and over $245,000 to Sportsbet,

Facts relevant to Form 1 (attaching to count 1): Count 4

During October 2018, the offender continued to ask Mr Keldoulis for money.
Between 18 October 2018 and 31 October 2018, Mr Keldoulis made five transfers totalling $218,000 into the Offender's Account and into other accounts associated with the offender. Transaction descriptions for these transfers included "Loan to Dene" and "Loan to Dene at Fastswim". Upon receipt of those funds, the offender continued to transfer money between different accounts in order to disguise the origin of the funds. New accounts were opened in October 2018, one in Ms Pollock's name and one in the joint names of the offender and Ms Pollock. The statement of agreed facts record that these accounts were opened by the offender without Ms Pollock's knowledge or permission using her login details.
During October 2018, the offender continued to use money he had obtained from Mr Keldoulis to fund his own lifestyle expenses including going on an overseas trip with Ms Pollock to the United States of America and Mexico. During that overseas trip, they stayed at expensive holiday resorts and the offender continued to spend large amounts of money online gambling. Such money included transfers totalling over $47,000 to TAB and over $206,000 to Sportsbet.

Facts relevant to count 5

The offender continued to ask Mr Keldoulis for money during November 2018. Between 9 November 2018 and 29 November 2018, Mr Keldoulis made six transfer totalling $400,000 into the Offender's Account and into other accounts associated with the offender. Transaction descriptions for these transfers included "Loan to Dene".
The offender's online gambling continued to escalate during November 2018. In that month, transfers were made totalling over $131,000 to TAB and over $464,000 to Sportsbet. In addition, large amounts were transferred to TAB and to Sportsbet from money held in accounts in Ms Pollock's name. The statement of agreed facts asserts that Ms Pollock did not approve those transfers.
The offender's employment with Speedo Swim School was terminated on 4 November 2018 because of the offender's failure to comply with his employment contract.

Facts relevant to Form 1 (attaching to count 5): Count 6

The offender continued to ask Mr Keldoulis for money during December 2018. Between 5 December 2018 and 19 December 2018, Mr Keldoulis made six transfers totalling $300,000 into the Offender's Account and into other accounts associated with the offender. Transaction descriptions for these transfers included "Loan to Dene". Upon receipt of those funds, the offender continued to gamble using the online platforms Sportsbet and TAB and he also made luxury purchases including a purchase costing $3,990 at Tiffany and Co jewellery retailer on Christmas Eve 24 December 2018.

Facts relevant to Form 1 (attaching to count 5): Count 7

During January 2019, the offender met further with Mr Keldoulis and spoke to him further about swim school expenses as well as the offender's mother's health. Representations made by the offender to Mr Keldoulis during January 2019 included the following: his mother was unwell and he had to pay $240,000 to get her into a nursing home on the south coast stating that she would die unless he got her into care; and he needed a bit more money to fix up his mother's house in Batemans Bay so he could sell it and then repay Mr Keldoulis.
Mr Keldoulis agreed to cover those costs.
Contrary to the offender's representations, in January 2019 the offender's mother resided in Bomaderry New South Wales where she had lived for the preceding eight years. She had never owned a home in the Batemans Bay area and aside from two heart procedures in 2000 and 2017 the offender's mother had not had any major health issues and did not require to be rehoused in an aged care facility. The story about the offender's mother's ill health and need for nursing home care had been fabricated by the offender in order to obtain money from Mr Keldoulis and in order to garner sympathy.
Further representations made by the offender to Mr Keldoulis in January 2019 included the following: he had found another opportunity to invest in a nine year lease for a pool at St Vincent's College in Potts Point; an investment was needed in a pool heater and shelter for the St Vincent's pool.
In either January or February 2019, the offender made further representations to Mr Keldoulis which included the following: he had found an opportunity to invest in a pool on the Gold Coast in Queensland for a $350,000 goodwill payment; and the income from the swim school would cover the rent and staff payments; and all the pools were doing well and they were in a very good position.
Mr Keldoulis agreed to the purchase of the pool on the Gold Coast and began to send funds to the Offender's Account as had been directed of him. The offender later represented to Mr Keldoulis that he had used Mr Keldoulis' funds to purchase the Gold Coast pool for a goodwill payment of $310,000 and the pool was operating and going well.
In mid-January 2019, the offender travelled to Surfers Paradise and Byron Bay spending on accommodation at resorts and withdrawing thousands of dollars in spending money.
At some point during the trip, Mr Keldoulis telephoned the offender and raised concerns about the financial investments he had been making. Ms Pollock then spoke to Mr Keldoulis and vouched for the offender, saying that he would be able to manage the business successfully.
Between 2 January 2019 and 29 January 2019, Mr Keldoulis made six transfers totalling $400,000 into the Offender's Account and into other accounts associated with the offender. Many of the transaction descriptions associated with those transfers were "Loan to Dene".
The offender continued during January 2019 to gamble through TAB and Sportsbet in amounts similar to those in November and December 2018. In late January, the Offender's Account at Sportsbet had become so large that the offender was requested to provide proof of income or other financial details and because he was unable to do so his Sportsbet account was closed on 29 January 2019. Following that, the offender continued to gamble with Sportsbet using accounts in other people's names including Ms Pollock's name.
The offender spent large amounts in late January including two payments totalling just less than $10,000 on a luxury boat hire and event company in Potts Point and large amounts of retail spending.

Facts relevant to Form 1 (attaching to count 5): Count 8

In late February 2019, the offender made further representations to Mr Keldoulis about the offender's mother's health. Representations made by the offender to Mr Keldoulis during February 2019 included the following: his mother would die within two weeks unless she received an urgent kidney transplant costing approximately $250,000; and the pools were running so well he should be able to return the money to Mr Keldoulis within three months.
Between 1 February 2019 and 18 February 2019, the offender continued to ask Mr Keldoulis for money. Mr Keldoulis made five transfers totalling $450,000 into the Offender's Account and into other accounts associated with the offender. The transaction descriptions associated with those transfers were "Loan to Dene".
During February 2019, the offender continued to gamble using money he had obtained from Mr Keldoulis. Betting during February occurred through betting accounts in the offender's own name, including an additional gambling account opened with Ladbrokes, together with accounts in the names of others.
Ms Pollock left Australia and returned to Canada on 15 February 2019. Subsequently, further large sums of money were transferred into and out of her account with some of those transfers carrying the transaction descriptions including "baby girl" and "allowance". Banking records indicate that Ms Pollock spent the money that had been sent to her by the offender. On 22 February 2019, the offender signed a 12-month lease for an apartment in Vaucluse, paying for the entire lease term in advance as well as a bond in an amount totalling over $47,000.

Facts relevant to count 9

In about March 2019, the offender and Mr Keldoulis met for coffee. During that meeting, the offender represented that his mother was recovering well from a kidney transplant operation. The offender then made further representations in March 2019 to Mr Keldoulis about his need for money including the following: his mother's body was "rejecting the kidney" and unless she had a further operation she was going to die; St Vincent's School told him that they were building a brand new indoor six lane pool to be completed within two years; a $600,000 investment would give them an additional nine-year lease; the pool could be a goldmine; and they could possibly be the biggest swim school in the eastern suburbs.
Although the offender often wore a St Vincent's College swim coach polo shirt to meetings with Mr Keldoulis, and although the offender was employed at the swim school as an instructor at no time did he engage with anyone in a position of authority at St Vincent's College to negotiate a business deal on behalf of the school.
Between 4 March 2019 and 29 March 2019, Mr Keldoulis made five transfers totalling $750,000 into the Offender's Account and into other accounts associated with the offender. Most of the transaction descriptions associated with those transfers were "Loan to Dene". The offender continued to gamble during March 2019 with Ladbrokes, Sportsbet and TAB using money he had obtained from Mr Keldoulis.

Facts relevant to Form 1 (attaching to count 9): Count 10

In April 2019, the offender continued to make representations to Mr Keldoulis about his need for money. Those representations included the following: the pool in Queensland was cracked, leaking and needed to be drained and rebuilt; the repairs would cost between $200,000 and $300,000; a builder looked at the roof structure and it was completely rusted through, the estimate to fix it was well over $200,000; and if they repaired the pool, the owner would give them another nine years on the lease.
Between 9 April 2019 and 30 April 2019, Mr Keldoulis made eight transfers totalling $535,000 into the Offender's Account and into other accounts associated with the offender. The transaction descriptions associated with those transfers included the "Loan to Dene", "Dene Swimfast" and to "Dene Loan".
During April 2019, the offender continued to gamble using money he had obtained from Mr Keldoulis.
In late April, the offender and Mr Keldoulis met at a café, during which the offender told Mr Keldoulis that his mother had an infection following the kidney operation and that she needed another operation. Mr Keldoulis said that he did not want the offender distracted from the swim school business and agreed to advance the further money needed for the additional operation.

Facts relevant to Form 1 (attaching to count 9): Count 11

Mr Keldoulis continued to make payments to the offender during May 2019. During that month, the offender made representations to Mr Keldoulis that included the following his mother needed another urgent operation which would cost $100,000; and the payment needed to be made that same day to secure the operating theatre.
Between 1 May 2019 and 21 May 2019, Mr Keldoulis made four transfers totalling $260,000 into the Offender's Account and into other accounts associated with the offender. The transaction descriptions associated with those transfers included "Dene".
The offender, continued to spend large amounts of money on online gambling during May 2019. Contrary to the offender's representations, at no time in 2019 did his mother undergo any medical procedure of the kinds described by the offender.

Facts relevant to Form 1 (attaching to count 9): Count 12

During June 2019, the offender made representations to Mr Keldoulis which included the following: he needed $118,000 to transfer his mother into a new nursing home in Malabar; the vacancy was available and she had to accept it immediately or the bed would be gone; the pools were all going well, he had a surplus in his account and was able to repay Mr Keldoulis $90,000; later, the offender requested a refund of the $90,000 that he had returned to Mr Keldoulis saying that he needed the $90,000 returned because he needed to pay outstanding bills; by a screenshot sent to Mr Keldoulis of a purported text message conversation with a contact called "accountant" the offender represented that message said: "You had to pay: Mum 118K, Bas gc 14K (behind), Bas mt: 8K, Bas Br: 5K St 6k, me 4K, ropes 1500. Personal 6K. Wages, GC 3 times 16k equals 406K."
A further text message with the offender copied to Mr Keldoulis purportedly from the "accountant" stated: "You're going to be around 260K. So you defiantly can't pay 90K back to [the victim] this term as you will be short. I told you this term would be a struggle. You either have to leave mum and get the money back from the nursing home today or get the 90K back from [the victim]."
References in that message to the victim are clearly a message to Mr Keldoulis.
Mr Keldoulis made a payment to the offender on 12 June 2019 paying the $90,000 referred to in the messages purportedly from "accountant". Following the payment, the offender told Mr Keldoulis that he had given the wrong account details for the transfer, but the bank said it would take a few days to organise the refund. So, he repeated his request for Mr Keldoulis to pay $90,000 which Mr Keldoulis then paid for the second time.
In mid to late June 2019, the offender made further representations to Mr Keldoulis about his need for money including the following: the business was having cashflow problems and he needed another $100,000; the offender sent Mr Keldoulis a screenshot of a text message purportedly from a contact named "Sue nursing home" which stated: "Hope your mum's move went well and she is doing well up there. Just letting you know, her bond has passed through our section and should be processed soon. :)"; he needed $75,000 to get rid of a debt to a money lender and the bank told him that the $100,000 Mr Keldoulis had sent in the previous week would bounce back because they had blocked his account and that he had reopened it.
The offender then sent Mr Keldoulis a screenshot of a fabricated text message purportedly from a contact named "CommBank" which stated: "Your ComBank account ending ####0724 has been activated again. All transactions will be ready for use. Thanks for choosing CommBank"; and he had spoken to a relative of Michael Klim, Olympic swimmer, who was interested in buying all four pools and would pay in excess of $6 million.
On 28 June 2019, the offender flew from Sydney to the United States of America to visit Ms Pollock.
During June 2019, Mr Keldoulis made five transfers totalling $375,000 into the Offender's Account and into other accounts associated with the offender. The transaction descriptions associated with those transfers included "loan for Dene's mother" and a "Loan to Dene".
Contrary to the offender's representations, at no time did the bank records for the Offender's Account indicate that his account was suspended or blocked by the Commonwealth Bank. Rather, the records show a continued spending through the Offender's Account on online gambling, retail spending and cash withdrawals during June 2019.

Facts relevant to count 13

During July 2019, the offender made representations to Mr Keldoulis which included the following: his bank account at the Commonwealth Bank had again been frozen, but there was plenty of money in the account, and it would soon be reopened; the potential purchaser was still interested and talking about a purchase price in the vicinity of $9 million; he had stupidly borrowed money from a money lender to cover operating expenses of pools and he needed to repay $75,000; subsequently, the Commonwealth Bank was investigating his account and it would remain frozen for possibly four weeks, the $400,000 in that account would have been used to cover pool expenses and he required $100,000 from Mr Keldoulis to cover the business expenses; and the offender sent Mr Keldoulis fabricated screenshots of purported text conversations with the purported purchaser of the pools which referred to a sale price of $9.5 million.
During July 2019, Mr Keldoulis made two transfers totalling $175,000 into the Offender's Account. The transaction descriptions associated with those transfers were "Loan to Dene".
Contrary to the offender's representations, at no time was any person interested in purchasing the pool business. All representations to Mr Keldoulis about the purported sale were fabricated by the offender in order to encourage Mr Keldoulis to continue to pay large sums of money.

Facts relevant to Form 1 (attaching to count 13): Count 14

During August 2019, the offender made representations to Mr Keldoulis which included the following: his account at the Commonwealth Bank may remain locked for 60 days; the sale of the business was progressing, but he needed money to make BAS payments and to pay salaries; further business expenses relating to the pool on the Gold Coast needed to be paid; the offender sent Mr Keldoulis a text message purportedly from a pool filter company in Queensland which stated that $40,000 was needed to repair the pool filter; he would travel to Queensland to inspect the pool; (the offender instead travelled to Bali but sent Mr Keldoulis a photograph of himself on a flight to suggest that he was travelling to Queensland); his quote for the repair work to the pool later increased to a figure of $45,000 plus extra for "other things"; and his mother was unwell again and needed another urgent kidney operation costing $100,000.
Between 6 August 2019 and 20 August 2019, Mr Keldoulis made four transfers totalling $270,000 into the Offender's Account. The transaction descriptions associated with those transfers were "Loan to Dene" or "Dene".

Facts relevant to Form 1 (attaching to count 13): Count 15

During September 2019, the offender made representations to Mr Keldoulis which included the following: an arranged meeting with the Offender's Accountant, Steve Elliott, and Mr Keldoulis' accountant had to be postponed because the Offender's Accountant and his wife were having IVF treatment and had gone to attend a retreat and in response to Mr Keldoulis's request for the contact details of the Offender's Accountant and the ABN number for Fastswim, the offender provided an email address "steve@seandb.page" and an ABN number which corresponds to a business number under the offender's name with a Vaucluse residential address.
The offender sent Mr Keldoulis a screenshot of a fabricated text message in relation to his mother's health and represented that his mother required another operation and would die unless she was able to pay $85,000. The offender sent Mr Keldoulis another screen shot of a fabricated text message purporting to be a request for a loan from a person named Wade. The offender sent Mr Keldoulis two further screenshots of fabricated text messages purportedly about a declined business loan application and about payment of a purported deposit for the purchase of the pool business.
When Mr Keldoulis sent an email to the address he had been provided for Steve Elliott, the offender sent Mr Keldoulis an email purporting to be Steve Elliott. The offender represented that he would be able to give Mr Keldoulis' accountant "proof of everything"; that he was unable to respond to Mr Keldoulis' accountant because he was on the Gold Coast with Ms Pollock and his daughter, and that his daughter was throwing a tantrum at the time (the agreed facts record that the offender had not seen his daughter for approximately nine and a half years). In response to Mr Keldoulis' request for documentation, including the proposed sale and purchase agreement, the offender said that he was having to work in Queensland because their pool there had no manager and was short of a coach.
The offender sent Mr Keldoulis a further screenshot of a fabricated text message from a contact named "accountant", purportedly setting up a meeting with the purchaser of the pools. Later, the offender sent Mr Keldoulis a further message stating that the purchaser was unable to attend the meeting because his team was in the AFL Grand Final. When Mr Keldoulis again requested copies of the sale and purchase agreement, the offender sent Mr Keldoulis a screen shot of a fabricated message from "accountant" stating that there was some issue with his email address.
In September 2019, Mr Keldoulis made one transfer in the amount of $85,000 into the Offender's Account.

Facts relevant to Form 1 (attaching to count 13): Count 16

During October 2019, the offender made representations to Mr Keldoulis that included the following: he had further money problems, including overdue staff payments. The offender sent Mr Keldoulis a screenshot of a fabricated text from the supposed purchaser of the pool business. The offender sent Mr Keldoulis a screenshot of a fabricated text message relating to the need for a contractor to pay their staff. The offender sent Mr Keldoulis a screenshot of a fabricated text message purportedly from the proposed purchaser of the pool business in relation to arranging a meeting. The offender sent Mr Keldoulis a screenshot of a fabricated text conversation with a person purportedly being involved in repairing the filter of one of the swimming pools, stating that the repair job would cost between 35,000 and $40,000.
The offender also represented to Mr Keldoulis that he was having mental health issues and that the pool in Matraville needed urgent repairs. The offender sent Mr Keldoulis a screenshot of a fabricated text message in relation to hospital expenses and a screenshot of a further fabricated text message which referred to 67k clearing tomorrow. He represented that he needed $35,000 to pay off a personal loan and to avoid high interest rates (in response to which Mr Keldoulis said that he himself would need to borrow the money).
Further, the offender sent Mr Keldoulis a screenshot of a fabricated text message in relation to the need to renew insurance an represented that he had transferred $200,000 to Mr Keldoulis's business account and sent Mr Keldoulis a screenshot of a fabricated text message from "ANZ" confirming two purported 100k transactions which would take a few days to clear. The offender sent Mr Keldoulis a screenshot of a fabricated text message from "accountant", stating that confirmation of liability insurance was needed before the sale and purchase could go through.
In October 2019, Mr Keldoulis made six transfers totalling $179,780 into the Offender's Account, most of which were labelled "Dene".
During October and November 2019, the offender told further and repeated falsehoods to Mr Keldoulis in order to conceal his conduct. Those further falsehoods included a fabricated text message sent by the offender to Mr Keldoulis purportedly from a person named "Katie", stating that the offender had tried to commit suicide the night before and was unable to respond to Mr Keldoulis messages.
On 14 November 2019, Mr Keldoulis telephoned St Vincent's College and spoke to a person who exposed the offender's deception. Following a police investigation, the offender was arrested and charged on 8 April 2021. The payments made by Mr Keldoulis to the offender between the period 3 July 2018 and 29 October 2019 totalled $4,808,780.
At no time did the offender intend to spend the money received from Mr Keldoulis on a swim school business, or to pay any expenses relating to his mother's health, or to pay any expenses relating to his mother's housing.
Mr Keldoulis forwarded money to the offender for the specific purpose of paying for business expenses, and for the offender's mother's medical and aged care expenses. He would not have provided that money if he had known that the offender was lying to him throughout the period.

Proceedings on sentence

The proceedings on sentence took place on 25 August 2023. The Crown sentence bundle comprised the notice of committal, the indictment, the agreed facts, Forms 1, the applicant's New South Wales and Queensland criminal history, the applicant's custodial history, and a Sentencing Assessment Report ("SAR") dated 5 December 2022.
The applicant relied on the following documents: an affidavit of his mother, Florence Roulston, affirmed on 8 June 2023, a letter from Jordan Busic, solicitor, dated 5 June 2023, the report of Dr Andrew Ellis, forensic psychiatrist dated 19 June 2023, two Bugmy Bar Book executive summaries, material subpoenaed from New South Wales Police, a, "Remand Addictions- Letter of attendance" at Cessnock Correctional Centre dated 9 February 2023, email correspondence between Martin Bernhaut, solicitor, and employees at Clarence Correctional Centre between 12 April and 19 July 2023, emails from Jacky Smoothy, inmate employment services lead, Clarence Correctional Centre dated 15 June 2023 and 23 August 2023 and an undated letter from the applicant to the court.
The applicant also gave evidence at the proceedings on sentence.

Remarks on sentence

After setting out the table extracted above at [14], his Honour went on to say this about the Form 1 offences: "Each offence carries a maximum penalty of ten years imprisonment. The manner in which a Court takes one or more offences into account, is with a view to increasing to an appropriate degree, the penalty otherwise appropriate for the principal offence. Sometimes a Form 1 offence is of a nature as to lead to no increase to the penalty otherwise appropriate for the principal offence. Sometimes its nature is such that subject to totality and proportionality, some degree of increase will be appropriate. Whilst I accept that the Form 1 offences in this case arose generally out of the same general criminal episode and in the same general circumstances at the principal offences, they were offences committed at separate times, with separate conduct, resulted in separate and additional financial advantage, and are subject to separate consideration as to objective seriousness. Subject to totality and proportionality, I consider it appropriate that there would be some increase to the penalties otherwise appropriate for each of the principal offences."
His Honour then summarised the facts in the terms extracted above before turning to consider the subjective material placed before the court.
His Honour noted the contents of the SAR and the applicant's prior convictions for dishonesty. The SAR recorded that the applicant had been using illicit drugs at the time of the offending including cocaine, Gamma-Hydroxybutyrate (GHB) and alcohol. Whilst under the influence of drugs and alcohol, he also engaged in excessive gambling. His risk of further offending was assessed as being high because of the length of time over which he continued the fraud, the fact that he knew the victim, that he had unresolved mental health, drug and alcohol issues and his financial distress.
In turning to the subjective material, his Honour referred to the affidavit from the applicant's mother. She confirmed the applicant's background including suffering sexual abuse as a child whilst at catholic school and the death of the applicant's father from dementia. He had problems with drugs, alcohol and gambling and had lost a number of friends and a former partner to suicide. He had made a number of attempts himself.
The psychiatric report detailed a suicide attempt by the applicant after ingesting GHB, ecstasy and alcohol. The applicant's history of substance abuse and addiction was set out in detail in the report and includes that the applicant began drinking alcohol at the age of 13 and commenced using ecstasy at the age of 14. He then used a number of stimulants as a teenager, began using GHB at the age of 23, followed by using ketamine and methamphetamine (ice) from the age of 40, as well as experimenting with several other illicit drugs. He also had a lengthy history of gambling which began at the age of 10.
His Honour noted that the psychiatric report included a finding that the applicant met the criterion for substance abuse disorder, a gambling disorder, and that he likely also suffered from personality disorder with narcissistic and borderline features. It was noted that whilst the applicant showed some positive indicators towards rehabilitation, these disorders remain largely unaddressed, and that he has historically responded poorly to treatment. Further, the applicant's need for supervision and other risk factors impacted negatively on his future prospects. However, his Honour observed that, in his own evidence, the applicant described his time in custody as being a big shock, that his incarceration meant he was drug and alcohol free for the first time since his teenage years, that he did not plan to use drugs or gamble upon release, and that he intended to seek professional health in relation to his addictions.
The psychiatric report also recorded that the applicant has two children, aged 12 and 24, with whom he has no contact.
His Honour referred to email correspondence from the Clarence Correctional Centre which indicated that the applicant attended work every day he was required and had received positive reports regarding work performance.
His Honour then referred to a letter from the applicant to the court where the applicant expressed remorse for his actions. His Honour considered the expressions of contrition and remorse in the letter as genuine and took them into account when considering the applicant's prospects of rehabilitation.
The applicant's own evidence confirmed many of the details outlined in his mother's affidavit and the psychiatric report. In addition, his Honour observed the applicant express disgust in relation to the lies he told Mr Keldoulis concerning his mother's ill health and caring for his daughter.
His Honour then turned to assess the objective seriousness of the four offences. The following factors were identified as being relevant to that assessment: "1. The amount of money involved, R v Hawkins (1989) 45 A Crim R 430, R v Mungomery (2004) 151 A Crim R 376 at [40], R v Woodman [2001] NSWCCA 310; R v Finnie [2002] NSWCCA 533 at [59] and whether the loss is irretrievable: R v Todorovic [2008] NSWCCA. 2. The length of time over which the offences are committed, R v Pont (2000) 121 A Crim R 302 at [43] - [44], R v Mungomery (as above). 3. The motive for the crime, R v Mears (1991) 53 A Crim R 141 at [145], R v Hill (2004) NSWCCA 257 at [6], R v Woodman (as above). 4. The degree of planning and specification, R v Mille (unrep, 1/5/98, NSWCCA), R v Pont. 5. Any accompanying breach of trust, R v El-Rashid (unrep, 7/4/95, NSWCCA), R v Pont (as above)."
His Honour also referred to the additional factor of the impact on the victim (R v Pont) and then addressed these factors separately.
The first factor addressed was the amount of money defrauded. His Honour noted the following in relation to that factor: "First, the amount of money involved. The amounts of money involved in premediated deception cases is a significant consideration in assessing the objective seriousness of the offence because it indicates the extent to which an offender is prepared to be 'dishonest and to flout the law and to advance whatever are his own purposes': R v Hawkins (1989) 45 A Crim R 430 at 435. In R v Mungomery (2004) 151 A Crim R 376 at [40], Hulme J said: '… authority makes it clear that the amount of money involved in premeditated deception is an important, and the period of time over which the offences are committed a relevant, factor in determining the extent of criminality, see Hawkins, R v Mears and other cases'. In R v Finnie (2002) NSWCCA 533 it was held that: 'The amount of money, whilst not determinative of the seriousness of the criminality is relevant to a degree and particularity where the offences are premeditated, committed on a number of separate occasions and involve a degree of planning, and are for substantial amounts of money'. In the present case the amounts of money defrauded were significant. Taking into account the counts and the matters on the Forms 1, the amounts defrauded were: For count 1, (taking into account counts 2, 3 and 4) the total financial advantage was $629,000. For count 5, (taking into account counts 6, 7 and 8) the total financial advantage was $1,550,000. For count 9, (taking into account counts 10, 11 and 12) the total financial advantage was $1,920,000. For count 13, (taking into account counts 14, 15 and 16) the total financial advantage was $709,000. I find that each of those amounts put the offending conduct above the mid range of objective seriousness for offending of this type, with count 5 and count 9 of greater objective seriousness than counts 1 and 13. (Emphasis added).
His Honour then moved to consider the length of time over which the offences were committed and stated the following: "The length of time over which offences are committed is a relevant factor in determining the level of criminality involved. The length of time can also be relevant to indicate the degree of planning and to show that it was not an impulsive offence: R v Murtaza [2001] NSWCCA 336 at [15], R v Mears (1991) 53 A Crim R 141 at 145, R v Woodman (2001) NSWCCA 310 at [28]. In addition, where an offence is committed over a significant period of time this may ameliorate the weight that may be afforded to good character, Luong v R (2014) NSWCCA 129. Taking into account the matters on the Forms 1, the periods of time over which the offences were committed: For count 1 (taking into account counts 2,3 and 4) a period of 3 months and 28 days. For count 5 (taking into account counts 6, 7, 8) a period of 3 months and 9 days. For count 9 (taking into account counts 10, 11 and 12) a period of 3 months and 20 days. For count 13 (taking into account counts 14, 15 and 16) a period of 3 months and 10 days. In light of the fact that the periods of offending conduct for each count range between three and four months, I find that this feature supports the finding that I have already made, that each count falls above the mid-range of objective seriousness for offending of this type. However, given the offender's course of conduct across all counts was a continuing deception which commenced on 3 July 2018 and continued until 29 October 2019, a total period of 15 months, I consider that that total period ameliorates to some degree the weight that may be afforded to any good character in accordance with Luong v R (2014) NSWCCA 129 at [21]." (Emphasis added.)
His Honour then noted that the applicant accepted that the duration of time over which the offences were committed was an aggravating factor.
His Honour then went on to assess the factor of motive and observed the following: "The motive for committing the offence will be a relevant factor when assessing criminality, R v Mears (1991) 53 A Crim R 141 at [145]. If the fraud is based on greed rather than need, the sentence imposed should be longer, R v Medina (unrep, 28/5/9 NSWCCA, R v Mears (as above). However, the fact that an offence is committed for a motive other than personal greed is not to be considered a matter of mitigation, Khoo v R (2013) 237 A Crim R 221 at [78]. The Crown has submitted that the offending was motivated by greed in order to furnish an extravagant lifestyle, including on overseas holidays and extravagant retail spending. There is evidence, including from Dr Ellis and from the offender, which point in the other direction. That other evidence points to some of the money obtained as a result of these crimes being spent on feeding the offender's substance and gambling addictions. In addition, the agreed facts refer to some of the offender's expenditure on gambling. The agreed facts are, however, silent on the extent of his expenditure on illicit drugs during the relevant period. It is unclear how much was spent on extravagance and how much was spent on addiction. On the evidence much of the financial advantage obtained remains untraced. None of the money has been returned to the victim."
His Honour next considered the "Degree of Planning" and its relevance to the assessment of objective gravity. He concluded that although there was a level of planning involved, it was not to a level such as to be "significant" or of a "high degree". His Honour also noted that there had been no breach of trust.
His Honour then turned to consider the applicant's submissions as to the mitigating factors relevant to the assessment of objective seriousness. As for the fact that the initial transfers were voluntary, his Honour noted that the applicant blatantly took advantage of the victim's generosity. His Honour accepted that there was only one victim, that the fraud was simplistic, that the victim was not vulnerable, and that the applicant did not use his good character or position of seniority to commit the frauds. The final submission that the victim could recoup his losses was rejected.
His Honour then addressed the applicant's mental health. The report of Dr Ellis noted that the applicant's mental health issues did not impair his ability to understand the wrongfulness of his actions, and as such, did not reduce his moral culpability. His Honour was satisfied that the applicant's mental health and history of suicide would make custody more onerous.
His Honour went on to note that the applicant's mental health and childhood sexual abuse reduced the significance of general deterrence "to some degree" but that general deterrence did remain a sentencing factor of importance.
His Honour was also satisfied that specific deterrence had a role to play, taking account of the applicant's background of mental health and trauma, and having regard to the applicant's failure to address the underlying issues notwithstanding the history of engagement with treatment in the past.
The sentencing judge considered and took into account the applicant's expressions of contrition and remorse. He also considered that the applicant had some indicators toward rehabilitation, although his substance abuse and gambling problem was largely unaddressed. Dr Ellis opined that the applicant had a historically poor response to attempts at treatment. His Honour assessed that the applicant's prospects of rehabilitation were "at best fair".
In respect of the sentence to be imposed, the sentencing judge determined that a degree of accumulation was warranted to reflect the different and escalating conduct, albeit some concurrency was warranted given that the offending was part of a course of deception of the same victim.
His Honour found special circumstances based on the applicant's mental health, to assist rehabilitation on release, and based on the difficulty of the time he would serve. The non-parole period imposed amounted to 66.7% of the total term of sentence.
Following the imposition of sentence, the advocate appearing on behalf of the Crown sought confirmation that his Honour elevated the objective seriousness of the offence with reference to the Forms 1. It was common ground at the hearing of the appeal that the resulting exchange did not clarify the issue: "MANSOUR: Just in relation to your Honour's initial remarks about the objective seriousness and the Form 1 offences I just wanted to confirm that your Honour did elevate the objective seriousness for the principal offences by taking into account the Form 1 offences in that fashion? HIS HONOUR: I'm not sure I said that I was. MANSOUR: No, your Honour didn't but just during the course of the remarks given the discussion of the amounts and the time frames and that it occurred around the same time as your Honour's remarks about your Honour's assessment of the objective seriousness for each of the principal offences. HIS HONOUR: I considered each of them separately. MANSOUR: Yes, your Honour and your Honour quite properly said at the end that the Form 1 offences had taken into account. I just wanted to ensure that that was borne out in the remarks. HIS HONOUR: I hope that was clear in the remarks. If it wasn't that certainly was what I had intended to say if that wasn't clear."

Ground 1: His Honour erred in using the Form 1 offences to determine the objective seriousness of counts 1, 5, 9 and 13

Applicant's submissions

The applicant contended under this ground that the sentencing judge erred by taking the quantum, timeframe and planning attributable to the twelve Form 1 offences into account when assessing and elevating the objective seriousness of each of the four offences for which the applicant was sentenced.
It was accepted that the criminality reflected in the Form 1 offences should have had an appreciable impact upon the sentences imposed for the substantive offences to reflect the need for personal deterrence and retribution. But in the applicant's case he was sentenced for four "rolled up" fraud offences and the objective seriousness of each of them contemplated the quantum, duration and conduct of the Form 1 offences. It is submitted that error has been established and that ground 1 should be upheld.

Crown submissions

The Crown accepted that it would be open to this Court to find that ground 1 is established. It was also accepted that if the court upheld this ground, it would be necessary for this Court to re-exercise the sentencing discretion afresh.
It was noted that the sentencing judge expressly considered the total "financial advantage" and the time over which the whole range of frauds occurred in assessing the objective seriousness of the index offences. Similarly, in considering the degree of planning involved in the offending and whether it aggravated the objective seriousness, the sentencing judge had regard to conduct which comprised the counts on the various Form 1 documents.

Consideration: Ground 1

Section 32(1) of the Sentencing Act provides as follows: (1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
The "document" that specifies the other offences to be taken into account is commonly referred to as a "Form 1".
As to the approach the sentencing court is required to adopt when the additional matters are taken into account, they are well known and to be found in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 ("Form 1 Guideline judgment"). Spigelman CJ enunciated the following principles at [39]-[40]; [42]: "[39] The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence. [40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, i.e. the primary offence. [42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which (sic) there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." (emphasis in original)
It is now well established, consistent with the principles enunciated in the Form 1 Guideline judgment, that an offence or offences placed on a Form 1 cannot be taken into account to elevate the objective seriousness of a principal offence. In RO v R [2019] NSWCCA 183, Beech-Jones J (as his Honour then was) (with whom Bathurst CJ and I agreed) upheld a ground of appeal contending that the sentencing judge had done so and stated that such an approach is erroneous for the following reasons (at [57]): "… because it is inconsistent with the Sentencing Procedure Act for Form 1 offences to be considered in this manner. For present purposes, the relevance of the Form 1 offences to the exercise of the sentencing discretion for the subject offences was that they demonstrated an 'additional need for personal deterrence and retribution' (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA); at [104] (Hoeben CJ at CL) and at [154] (Garling J); ('Abbas') and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42])."
In Tukuafu v R [2024] NSWCCA 84, Huggett J (with whom Ward P and Chen J agreed) summarised the relevant principles again in the context of considering whether the decision in Flick v R [2023] NSWCCA 197 (which suggested one possible example of when the facts of a Form 1 matter could be taken into account to assess the objective seriousness of a principal offence) was plainly wrong and should not be followed. It was not ultimately necessary for the court to determine that question, but her Honour distilled a number of principles relevant to the consideration of the purported error which are worth repeating.
Her Honour noted (at [129]) that the further offence(s) may increase the weight to be afforded to personal (or specific) deterrence and retribution; provide the context of the offending for which an offender is to be sentenced; demonstrate that a principal offence was not isolated or aberrant but is representative of an ongoing course of conduct; inform an offender's moral culpability; establish that an offender is not a person of good character; establish an offender's motive, state of mind and/or intention at the time the principal offence is committed; and/or establish an offender's awareness of the complainant's vulnerability. Her Honour then went on to observe the following at [130]-[131]: "[130] Taking a further offence on a Form 1 document into account for one or more of these purposes is permissible and may result in an increase in the penalty or sentence ultimately imposed. Where the further offence is relatively minor in its seriousness, it may add little to nothing to the otherwise appropriate sentence. Where the criminality involved in the further offence is significant or substantial, subject to proportionality, its effect on the sentence imposed may be 'substantial' (Attorney General's Application at [18]). However, that effect is not because the further offence increased the objective seriousness of the principal offence. Rather, it is because the appropriate sentence is determined by reference to numerous matters including the objective seriousness of the offence for which the sentence is to be imposed (considered without regard to any further offending on a Form 1 document) and a consideration of whether further offending on a Form 1 document should bear upon any of the purposes described in [129]. [131] It follows that the assessment of objective seriousness and its relationship with the principle of proportionality will be compromised if conduct encompassed in a Form 1 offence is taken into account. That will be because the resulting assessment of objective seriousness would not be an assessment based on the objective gravity of the offence before the court for sentence. Rather, it would reflect the principal offence and the further offence (or offences) attached to the principal offence by way of a Form 1 document. That would be erroneous because it would result in an offender being punished for the conduct encompassed by an offence on a Form 1 document."
More recently, in Nosti v R [2024] NSWCCA 158, Dhanji J (with whom Harrison CJ at CL and Rigg J agreed) considered a similar ground in the context of multiple fraud offences both on an indictment and Form 1. As in the present appeal, the sentencing judge had referred to the total quantum of the numerous charged frauds in terms which included the Form 1 amounts and also included one Form 1 offence when assessing the period of time over which the offending occurred. The appeal was upheld on that basis. The court accepted that the error in that case was "entirely understandable" given "the conduct of the parties, in tendering the Agreed Facts in the form that they were in, the submissions of the Crown and the submissions on behalf of the applicant were all such as to lead her Honour into error": at [31].
Having regard to the sentencing reasons extracted above and the relevant principles, I am satisfied that the Crown's concession in relation to ground 1 was properly made. The sentencing judge had regard to, in particular, the quantum and date range for the Form 1 offences when assessing the objective seriousness of the four charges upon which the applicant stood for sentence.
It should be observed, as occurred in Nosti v R, that the sentencing judge was not assisted by the manner in which the charge bargaining prior to the trial and the agreed facts were arrived at. In particular, the approach taken would appear to be contrary to both the observations by Spigelman CJ in the Form 1 Guideline judgment and the relevant Prosecution Guidelines issued under the Director of Public Prosecutions Act 1986 (NSW).
In the Form 1 Guideline judgment, Spigelman CJ noted (at [57]) the need to strike a balance between the number and gravity of the charges on the indictment as opposed to those on the Form 1 as follows: " … there is a balance to be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1. A sentencing judge will find it difficult to undertake the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1."
His Honour went on (at [58]) to note that the determination of the appropriate balance is a matter for the Crown and will generally occur in the context of charge negotiations between the prosecution and the defence. His Honour then noted the relevant Prosecution Guidelines at the time in relation to charge bargaining. His Honour then said this (at [61]): "Perhaps consideration should be given to providing guidance explicitly directed to elaborating the 'suitability' of offences for inclusion on a Form 1. Any such consideration would need to have in mind the Court's discretion to refuse to take into account Form 1 offences, notwithstanding the agreement of the prosecution and defence to that course."
Prosecution Guideline 4.5 now relevantly states the following: "4.5 Taking offences into account - Form 1 offences It is up to the prosecutor to determine whether or not an offence is suitable for placement on a Form 1 as part of a charge resolution. This decision should be based on principle and reason, not administrative convenience or expedience alone. The prosecutor should have regard to: 1. the need to ensure that the offences for which the offender will be sentenced adequately reflect the totality of the admitted criminality 2. the relative seriousness of, and the maximum penalties for, offences for which the offender will be sentenced and on the Form 1, including consideration of aggravating factors 3. the relationship between the principal offence and the Form 1 offences, taking into account the need to represent individual victims and episodes of offending on the indictment 4. the public interest in convictions being recorded for certain offences. The maximum penalty for a Form 1 offence should generally be less than the maximum penalty available for the principal offence. In some circumstances it may be appropriate for offences with the same maximum penalty as the principal offence to be placed on a Form 1 - for example, where there are multiple offences of a similar nature - provided doing so would not create an imbalance between the principal offence and the Form 1 offences." (Emphasis added.)
It was accepted on behalf of the Crown at the hearing of this appeal that there was a clear imbalance between the criminality on the Forms 1 and that on the indictment in the present matter. Although charging decisions remain at the exclusive discretion of the Director of Public Prosecutions, it is difficult to see why the decision was made to place so many of the counts on the Forms 1 in this matter. The Crown case was strong and there is no apparent difference in the strength of the Crown case for the offences which were placed on the Forms 1 as opposed to those which remained on the indictment. Nor was the number of offences on the indictment (16) so high that a pragmatic decision to do so was required. The unorthodox approach in this matter made the sentencing task more difficult for his Honour.
Finally, I note that although the advocate who appeared for the Crown when the sentence was delivered was alive to the error established under this ground and sought to clarify it, as the Crown properly conceded at the hearing of the appeal, it could not be said that what fell from his Honour at that time was capable of fixing the identified error.
I would uphold ground 1.

Finding of objective seriousness for resentence

It was common ground that in the event that the court upheld ground 1 there was no need to consider ground 2 as the court is required to proceed to resentence the applicant. Although it is not open to this Court to make a different factual finding on resentence if that fact is not challenged (Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579; Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25), it is permissible to do so if the relevant fact is challenged: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
It was submitted on behalf of the applicant that this Court would assess the objective seriousness to be lower than that found by the sentencing judge on the basis that this Court would not proceed in the same way as the sentencing judge did by taking into account the twelve Form 1 offences when assessing the quantum and timeframe of the offending.
It was acknowledged that a sentencing judge is not obliged to indicate where on the scale of seriousness each offence falls (DH v R [2022] NSWCCA 200 at [58]-[60] per Yehia J). But it remains necessary for a sentencing judge to identify all factors relevant to a sentence before determining the appropriate sentence, including factors that bear on the objective gravity of an offence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
The applicant submitted that a finding of lower objective seriousness could be made on the basis of the "unique circumstance for a fraud of this quantum" because, unlike in other cases of this type, there was only one victim and that, while not mitigating, it is a relevant consideration, and that there was absence of relationship of trust. It was conceded that there was emotional manipulation of the victim and that the whole operation was not "sophisticated".
It was further submitted that the court would find that the motive was to fund his gambling addiction rather than simply greed. The applicant relied upon the decision in Abellanoza v R [2021] NSWCCA 4 (relied upon by the Crown in the court below) in submitting that the Crown conceded that the evidence was capable of establishing that there was a gambling disorder in addition to his lifestyle factors.

Finding of objective seriousness

The relevant principles when assessing the objective seriousness of a fraud offence were addressed by Dhanji J in Nosti v R. His Honour observed the following regarding the assessment of objective seriousness for fraud offences generally at [44]-[45]: "[44] … In cases of fraud such as the present, that total criminality will often be expressed in terms which include reference to the total amount obtained and the period over which the offending occurred. When looking at the results in other cases as comparators, it is common to assess those cases against the matter to be sentenced by reference to those metrics. Indeed, her Honour engaged in precisely this exercise. The relevance of the total amount of the fraud, as opposed to the amounts involved in the individual charges is further underscored by the fact that, as here, many of the 'individual' charges will in fact be 'rolled up' charges; that is, single charges which themselves encompass a number of individual offences, noting the use of rolled up charges necessarily affects the available maximum penalty: see generally R v Richard [2011] NSWSC 866. [45] None of what I have said immediately above is to suggest that sentencing for fraud offences should proceed by reference principally to the factors of quantum and duration. To give these factors determinative weight would be to commit the type of error identified in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64. That is, it would be contrary to the principle of individualised justice. Without intending to be exhaustive, other factors commonly of relevance are any breach of trust and its nature; the number of victims and their circumstances; the sophistication of the enterprise; and the nature of the deception engaged in. An offender's subjective case will, of course, always be relevant. All relevant factors must be considered in the instinctive synthesis, including when looking at comparable cases."
The sentencing judge had regard to all of the relevant factors and did not focus solely on the amount involved and the duration of the frauds. I have taken the same approach in assessing the objective seriousness for the purpose of resentencing albeit I am required to make the assessment based on lower amounts and shorter time frames than the sentencing judge.
Whereas his Honour had regard to the total amounts of counts 1, 2, 3 and 4 ($629,000 over a period of three months and 28 days), the amount on the indictment for count 1 was only $16,000 and a timeframe of 23 days (a shortfall of $613,000).
Whereas his Honour had regard to the total amounts of counts 5, 6, 7 and 8 ($1,550,000 over a period of three months and nine days), the amount on the indictment for count 5 was $400,000 over a timeframe of 20 days (a shortfall of $1,150,000).
Whereas his Honour had regard to the total amounts of counts 9, 10, 11 and 12 ($1,920,000 over a period of three months and 20 days), the amount on the indictment for count 9 was $750,000 and a timeframe of 25 days (a shortfall of $1,170, 000).
Finally, whereas his Honour had regard to the total amounts of counts 13, 14, 15 and 16 ($709,780 over a period of three months and 10 days), the amount on the indictment for count 13 was $175,000 and a time frame of seven days (a shortfall of $534,780).
As for the motive of the offending, I too am satisfied that the applicant was motivated by greed. As the sentencing judge observed, it is unclear how much was spent on extravagance and how much was spent on addictions because most of the funds remain untraced and none were returned to the victim.
It is to be accepted that there is evidence that greed was not the only motive but there is no need for that to be the case before I can have regard to the motive of greed as an aggravating factor. The applicant's psychiatrist identified that the offending had a "dual motive, one of which was to maintain his self-image and addiction, and the other was to benefit his lifestyle". The agreed facts show that the applicant had (at least): syphoned money deposited by the victim into other bank accounts; transferred money into accounts of his partner; travelled on a number of overseas and interstate trips including Bali, Mexico and the Gold Coast; lost his original job as a swimming instructor and rented an apartment in Vaucluse for cash paying the whole term of the 12 month lease ($47,000).
In addition to spending considerable amounts on gambling there was also evidence of drug use.
The sentencing judge correctly observed that neither gambling, nor drug use would ordinarily mitigate a sentence imposed, citing Johnston v R [2017] NSWCCA 53 at [36] and R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [203].
In assessing the objective seriousness of the offending, I have had regard to the fact that the sole motive was not greed, but I am not satisfied that the fact that some of the funds were also used on drugs and gambling mitigates the objective seriousness in any material way.
Having regard to all of the relevant factors I have already referred to as well as the different amounts and time frames for the four offences, I would assess them all to be in the mid-range. That is lower than the assessment made by his Honour and reflects the significantly lower amounts on the indictments as a result of the removal of so many of the offences onto the Forms 1.

Resentence

On resentence, the applicant relied upon the affidavit of Esha Bhutani affirmed on 6 November 2024 with annexures. That affidavit addressed the applicant's education, employment and conditions in custody. Significantly, it addressed the question of his eligibility for in custody Compulsory Drug Treatment Order ("CDTO"). The Crown relied upon the affidavit of Phillipa Winston affirmed on 7 November 2024 with annexures in relation to the applicant's referral to the Drug Court and determination pending his appeal results.
In reliance on this new material, the applicant submitted that this Court has a duty, whether a lesser sentence is imposed or otherwise, to refer the applicant for assessment to the Compulsory Drug Treatment Program: Willmott v R [2016] NSWCCA 256. The background to that submission is as follows.
After the applicant was sentenced, his advocate erroneously submitted to the sentencing judge that he could be referred to the Drug Court for consideration of his eligibility and suitability for the Compulsory Drug Treatment Correctional Centre Program ("CDTCC program"). In response to that submission the sentencing judge made such a referral. He did so under s 18B of the Drug Court Act 1998 (NSW) which imposes a duty on the relevant court for referral to the Drug Court for determination as to whether an "eligible convicted offender" should be subject to the CDTO.
Section 18B provides: 18B Courts to refer eligible convicted offenders to Drug Court This section applies to such courts as are prescribed by the regulations. (2) It is the duty of a court to which this section applies that sentences a person to imprisonment or which, on determining an appeal, confirms a sentence of imprisonment imposed on the person by some other court (whether or not on the same terms as the other court) - (a) to ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender, and (b) if so, to refer the person to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order. (2A) The duty imposed on a court by this section does not apply to a court on determining an appeal (an appeal court) if the person whose sentence is confirmed in the appeal is already the subject of a compulsory drug treatment order as a consequence of a referral made to the Drug Court by the court that imposed the sentence confirmed by the appeal court. (2B) However, if the person whose sentence is confirmed by the appeal court is not already the subject of a compulsory drug treatment order, the duty imposed by this section applies to the appeal court, whether or not the court that imposed the sentence confirmed by the appeal court referred the person to the Drug Court under this section. (3) The duty imposed on a court by this section is to be exercised as soon as practicable after the person is sentenced to imprisonment or the appeal is dealt with. (4) The registrar or clerk of a court that refers a person to the Drug Court under this section must give to the registrar of the Drug Court such documents and materials prescribed by the regulations relating to the person as are requested by that registrar. (5) No appeal lies against a court's decision to refer or not to refer a person to the Drug Court for a determination as to whether the person should be the subject of a compulsory drug treatment order. (6) For the purposes of this section, an appeal includes an application for annulment of sentence in so far as it relates to a decision referred to in subsection (5).
Regulation 9 of the Drug Court Regulation 2020 (NSW) provides as follows concerning the prescription of referring courts: 9 Referring courts - referral of eligible convicted offenders For the purposes of section 18B (1) of the Act, the following courts are prescribed: (a) the District Court, in respect of all criminal proceedings brought before it in its sittings at Campbelltown, Liverpool, Parramatta, Penrith or Sydney, (b) the Local Court, in respect of all criminal proceedings brought before it in its sittings at Balmain, Bankstown, Blacktown, Burwood, Camden, Campbelltown, Central, the Downing Centre, Fairfield, Hornsby, Kogarah, Liverpool, Manly, Mount Druitt, Newtown, North Sydney, Parramatta, Penrith, Richmond, Ryde, Sutherland, Waverley or Windsor, (c) the Drug Court, in respect of sentences imposed or determined under section 7D (3) or 12 (3) of the Act, (d) the Court of Criminal Appeal, in respect of appeals from a court referred to in paragraph (a), (b) or (c) in respect of the proceedings referred to in relation to that court."
Section 5A of the Drug Court Act provides the following definition of "eligible convicted offender": 5A Definition of "eligible convicted offender (1) A person is an eligible convicted offender if - (a) the person is convicted of an offence, other than an offence referred to in subsection (2), and (b) except as provided for by subsection (1A), the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and at the time that the sentence was imposed - (i) the unexpired non-parole period of the sentence was a period of at least 18 months, and (ii) the unexpired total sentence was a period of not more than 6 years, and (c) (Repealed) (d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and (e) the facts in connection with the offence for which the person has been sentenced, together with the person's antecedents and any other information available, indicate that the offence was related to the person's long-term drug dependency and associated lifestyle, and (f) the person satisfies such other criteria as are prescribed by the regulations. (1A) Subsection (1) (b) does not prevent a person whose parole order has been revoked from being an eligible convicted offender if the person is a relevant person within the meaning of section 18BA (State Parole Authority to refer certain offenders whose parole is revoked to Drug Court). (2) A person is not an eligible convicted offender if - (a) the offence for which the person has been convicted involved the use of a firearm, or (b) the person has been convicted at any time of any of the following - (i) murder, attempted murder or manslaughter, (ii) sexual assault of an adult or child or a sexual offence involving a child, (iii) any offence involving the violent use of a firearm, (iv) an offence under section 23 (2), 24 (2), 25 (2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity or large commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act, (v) any offence prescribed by the regulations for the purposes of this section. (3) A person is not an eligible convicted offender if, in the opinion of the Drug Court - (a) the person suffers from a mental condition, illness or disorder that - (i) is serious, or (ii) leads to the person being violent, and (b) the mental condition, illness or disorder could prevent or restrict the person's active participation in a drug treatment program. (Emphasis added.)
The applicant was not an "eligible convicted offender" at the time of his sentence because he had an unexpired total sentence of 6 years 6 months and 28 days which exceeded the 6 year ceiling imposed by s 5A(1)(b)(ii) of the Drug Court Act. This meant that he was deemed ineligible by the Drug Court on 17 October 2023 at the stage of preliminary screening.
The applicant submitted for the purposes of resentencing that if the unexpired non-parole period of the sentence imposed on resentence constitutes a period of at least 18 months, this Court has a duty to refer the applicant for further consideration for a CDTO pursuant to s 18B of the Drug Court Act as he would otherwise meet the eligibility criteria. It is submitted that the suitability criteria are likely to be met by the applicant. He is not currently eligible for other in-custody programs and his prospects of rehabilitation would be further enhanced by participation in the CDTCC program.
It was further submitted that even if the appeal was dismissed, the applicant should still be referred to the Drug Court for assessment of eligibility and suitability for the CDTCC program pursuant to s 18B of the Drug Court Act. That was on the basis that as at the date of the hearing of this appeal, on 29 November 2024, the applicant had an unexpired total sentence of 5 years 4 months and 21 days (29 November 2024-18 April 3030), and an unexpired non-parole period of 2 years 10 months and 20 days. Accordingly, he met the definition of an eligible convicted offender pursuant to s 5A(1)(b)(i)-(ii) of the Drug Court Act.
The Crown accepted that the applicant appeared to be eligible and did not oppose a referral as sought. I am satisfied that such a referral ought to be made.
It was submitted on behalf of the applicant that the more recent evidence also supports a finding on resentence that the applicant now recognises the assistance he needs, that he has gained insight and that he has good prospects of rehabilitation. Reliance was placed on the recent evidence which shows that, inter alia, he has enthusiastically participated in Narcotics Anonymous and has continued to engage in custodial employment.
The Crown challenged some of these proposed findings. As for the applicant's insight into his offending, the Crown relied on the fact that the applicant's psychiatrist found that the offences were committed unimpaired by his background of mental health issues, that "his underlying issues remain unaddressed and that he has been unresponsive to treatment with a poor history of engagement.
Having regard to the material that was before the sentencing judge and the updated material, I am satisfied that the applicant does appear to have gained some insight into his offending since the date of his sentence and I propose to take that into account.
The applicant also submitted that the Court would make a more favourable finding regarding prospects of rehabilitation. This was based on his recent attempts in custody to address the underlying risk factors identified in the SAR and in Dr Ellis's report. Again, although I would not go so far as to make a finding that he has "good" prospects of rehabilitation, I am satisfied that they are more favourable than at the time he was sentenced when his Honour found they were "at best fair".
I accept all of the relevant findings made by the sentencing judge which are not now challenged by the applicant including that the applicant's prior record operated to "disentitle him to leniency". He was not a person of good character as regards honesty. I would also make a finding of special circumstances for the same reasons as his Honour and allow for a similar degree of notional cumulation and concurrence.

Conclusion

Overall, the offending was objectively serious. The applicant made repetitive false statements taking advantage of his close relationship with the victim. He used false claims about business operations, and about his mother's health in a considered and deceptive manner.
As for the Form 1 offences, I am satisfied that the criminality involved in them was "substantial" which means that their effect on the indicative sentence for each count may also be "substantial": Form 1 Guideline judgment at [18]. Although I am satisfied that it is appropriate that the indicative sentence for each of the four offences be increased to take into account the serious criminality on the Forms 1, the fact remains that I am ultimately sentencing the applicant for less criminality than would have been the case had so much of it not been placed on the Forms 1.
I have arrived at the following indicative sentences: Count 1 (taking into account counts 2, 3 and 4 on Forms 1) - 2 years and 6 months' imprisonment. Count 5 (taking into account counts 6, 7 and 8 on Forms 1) - 3 years and 9 months' imprisonment. Count 9 (taking into account counts 10, 11 and 12 on Forms 1) - 4 years' imprisonment. Count 13 (taking into account counts 14, 15 and 16 on Forms 1) - 3 years' imprisonment.

Orders

I would propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. The aggregate sentence imposed by Judge McGuire SC on 20 November 2023 is quashed. In lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment of 6 years and 6 months to commence on 19 October 2022 and to expire on 18 April 2029 with a non-parole period of 4 years and 3 months to commence on 19 October 2022 and to expire on 18 January 2027. 4. The applicant is referred to the Drug Court for determination of whether he should be the subject of a Compulsory Drug Treatment Order.
YEHIA J: I agree with the orders proposed by Justice N Adams for the reasons provided by her Honour. I also agree with the additional remarks of Justice Davies.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2025

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (31)